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Let the Legislature Decide

by Ronald D. Rotunda

This essay originally appeared in USA Today on Nov. 21, 2000. Copyright 2000 Gannett Company Inc.

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Not all disputes have to be resolved in court. In fact, both Florida and federal law provide a procedure for disputed presidential elections, and it doesn't involve the Florida Supreme Court.

Florida's non-judicial remedies include a prompt machine recount in races that remain tight after a first count. In this case, George W. Bush won them both. There is a hand count if there is machine malfunction, fraud or natural disaster. (There was none.)

Given the need to move fast, Florida law sets a deadline, which passed last week. If the secretary of State does not certify the Florida electors in time, federal law provides that the Legislature should decide how electors should be appointed. Florida statutes, in turn, say that the legislature will choose the electors directly. This issue came up in 1876 in a Rhode Island case. The state Supreme Court held that the Legislature picks electors, and the court does not have a role.

But when the justices of the Florida Supreme Court (appointed by Democratic governors) enjoined the secretary of State from certifying the election, they provoked a constitutional crisis by ignoring precedent, overturning their trial court and ignoring Democrat Bob Crawford of the state canvassing board, who agrees with the secretary.

The court order last Friday is also unusual because normally a court waits until an aggrieved party files a motion. Not this court. It gave Al Gore something he never requested -- an injunction preventing the secretary from following her statutory duties.

Some people claim that selection of Florida's electors by the state Legislature would be partisan, but no more partisan than courts changing election law after the fact and granting court orders nobody asked for.

In fact, a fight in the Florida Legislature might be better than a court decision. First, that's what state and federal laws provide. Second, the debate there would be public, unlike the deliberations of the state court. This debate would also include Republicans, while all of the justices who sit on the Florida court are Democratic appointees.

The issue here is not respect for the role of courts, but respect for the law when it says solutions to thorny political problems must be found elsewhere.